Appreciation of Digital Evidence in Sri Lankan Law

BY

TALWANT SINGHADDL. DISTRICT & SESSIONS JUDGE

DELHI DISTRICT COURTS, INDIA

Appreciation of Digital Evidence

• ICT related evidence may be computer generated or computer related evidence and could be even without any human intervention.

• Some countries tried to interpret computer evidence as Documentary Evidence or Real Evidence as in case of India.

• Then it should be governed under Rules of Primary and Secondary evidence and it shows that computer evidence is not easy to consider as `documentary evidence.'

Appreciation of Digital Evidence

• Prior to the introduction of Evidence (Special Provisions) Act, 1995 in Sri Lanka, there was no provision under Law of Evidence to admit Computer Evidence.

• The Evidence (Special Provisions) Act has been introduced to manage computer-based evidence efficiently and legally in civil and criminal proceedings before courts.

Appreciation of Digital Evidence

• Computer' is defined in section 12 of the Act and it means any device the functions of which includes storing and processing of information.

• By this definition, even a Smart Phone is a Computer.

• 'Digital evidence' or electronic evidence is any probative information stored or transmitted in digital form that a party to a court case may use at trial.

Appreciation of Digital Evidence

• Computer Evidence has been specified under section 5(1) of the Act as:

• In any proceedings where direct oral evidence of a fact would be admissible any information contained in any statement produced by a computer and tending to establish the same fact shall be admissible as evidence of that fact subject to the conditions expressed in the same section such as;

• The statement produced or reproduced, is capable of being perceived by the senses;

• Cont...

Appreciation of Digital Evidence

Cont..

• At all material times the computer producing the statement was operating properly or, if it was not, any respect in which it was not operating properly or out of operation, was not of such a nature as to affect the production of the statement of the accuracy of the information contained therein;

• The information supplied to the computer was accurate and the information contained in the statement reproduces or is derived from, the information so supplied to the computer.

Appreciation of Digital Evidence

• It shall be sufficient to show that:

(a) during the said period there was regularly supplied to the computer, in the ordinary course of such activity, information of the kind contained in the statement or of the kind from which the information so contained is derived ; and

(b) the information contained in the statement reproduces, or is derived from, information regularly supplied to the computer in the ordinary course of such activity.

Appreciation of Digital Evidence• Where any statement referred to in sub-section 5(1)

of the Act, (a) It cannot be played, displayed, or reproduced

in such a manner as to make it capable of being perceived by the senses;

(b) It is capable of being so perceived but the same is unintelligible to a person not conversant in a specific science; or

(c) Same is of such a nature it is not convenient to perceive and receive in evidence, in its original form,

• Then a transcript, translation, conversion or transformation, as the case may be, of the same, which is intelligible and is capable of being perceived by the senses are admissible as evidence.

Appreciation of Digital Evidence• Section 7 of the Act provides provisions regarding

Notices to have access to inspect evidence sought to be produced, machine, device, or computer, any records relating to the production of the evidence or the system used in such production, and the steps to be taken by the other party.

• The court may presume the accuracy of any recording, reproduction or statement produced by, or by use of a machine, device or computer which is in common use where the court draws such presumption with respect to any recording, reproduction or statement, and in the absence of any evidence to the contrary.

Appreciation of Digital Evidence

• As per Electronic Transactions Act No.19 of 2006, If any information is contained in a data message, electronic document, electronic record or other communication made by a person who is dead or who by reason of his bodily or mental condition is unfit to attend as a witness;

• Or who is outside Sri Lanka and where reasonable steps have been taken to find such person and he cannot be found;

• Or who does not wish to give oral evidence through fear; or who is prevented from so giving evidence,

• Then any evidence relating to such information shall, if available, be admissible.

Appreciation of Digital Evidence

• The Courts shall, unless the contrary is proved, presume the truth of information contained in a data message, or in any electronic document or electronic record or other communication; and

• In the case of any data message, electronic document, electronic record or other communication made by a person, that it was made by the person who is purported to have made it; and

• Similarly, shall presume the genuineness of any electronic signature or distinctive identification mark therein.

Appreciation of Digital Evidence

• The burden of proof of the genuineness of such document has been virtually shifted from proposing party to the opposing party.

• There is no applicability of the Evidence (Special Provisions) Act in relation to any data message, electronic document, electronic record or other document to which the provisions of Electronic Transactions Act applies.

Appreciation of Digital Evidence• Section 16 of the Payment Devices Frauds Act

deals with matters relating to evidence under the same Act. Accordingly, a certified copy of an entry relating to a payment device located in Sri Lanka or outside Sri Lanka, kept by an Issuer or acquirer in the ordinary course of business of such Issuer or acquirer, whether kept in written form or stored by electronic, magnetic, optical or any other means in an information system or computer or payment device shall be admissible in evidence in relation to a prosecution in respect of an offence under section 3 of the Act, and shall be prima facie evidence of the facts stated therein.

Appreciation of Digital Evidence

• Discovery of evidence is the most essential part to prove a case and various jurisdictions have faced common and different types of difficulties unique to relevant legal systems due to its own nature (of laws), procedures etc.

• When the subject matter is discussed with `Computer or electronic evidence', it will be a more complicated issue compared to discovery of non electronic evidence.

Appreciation of Digital Evidence

• With development of technology, evidence takes a new form.

• E-mail, chat room transcripts, databases, spreadsheets, web browser history files, information through system backup tapes have been replacing conventional paper documents.

• Computer evidence may be stored in hidden files as there is a great deal of left over data stored on their disk drives of a computer. Some institutions may store their data at a distant server, different website etc.

Appreciation of Digital Evidence

Digital Evidence can be found in:• e-mails • digital photographs • ATM transaction logs • word processing documents • instant message histories • files saved from accounting programs• spreadsheets• internet browser histories

Appreciation of Digital Evidence

Cont...

• databases • Contents of computer memory• Computer backups• Computer printouts• Global Positioning System tracks• Logs from a hotel’s electronic door locks• Digital video or audio files

Appreciation of Digital Evidence

• Digital discovery tends to be voluminous, as electronic data are cheaper and easier to copy, archive and distribute.

• Electronic data, unlike their conventional counterparts, do not disappear easily and difficult to delete (or destroy) of an electronic document.

• Unlike a paper document, digital document has increased the number of locations where potentially discoverable documents may be found.

• Cost factor relating to digital discovery is a serious problem due to its nature.

Appreciation of Digital Evidence

• Digital Evidence:>tends to be more voluminous>more difficult to destroy>easily modified>easily duplicated>potentially more expressive, and >more readily available

Appreciation of Digital Evidence• Privacy issues will be another aspect under Digital

discovery since courts can allow access to email, records of Web sites visited, transcripts of chat room discussions etc. to discover such evidence.

• Standard of knowledge and competence of investigators and their ability to explain the relevance of electronic forensic analysing tools used for discovery of electronic evidence also might open doors for different level of acceptability of such evidence in Court trials.

• It is the duty of the Forensic experts to ensure that nothing has been added to or deleted from electronic evidence recovered from crime scene.

Appreciation of Digital Evidence

under Sri Lankan Law

THANKS

TALWANT SINGHADDL. DISTRICT & SESSIONS JUDGE

DELHI DISTRICT COURTS, INDIA